Smyth v Tunney

• Jurisdiction: Ireland
• Judge: Justice Geoghegan
• Judgment Date: 21 April 2004
• Neutral Citation: [2004] IESC 24
• Date: 21 April 2004
• Court: Supreme Court
• Docket Number: [2001 No. 349, 2001

SMYTH & GENPORT LTD v. TUNNEY & ORS

BETWEEN/

PHILIP SMYTH AND GENPORT LIMITED

Plaintiffs/Appellants

and

HUGH TUNNEY, CROFTER PROPERTIES LIMITED, GERARD B. COULTER AND CAROLINE DEVINE

Defendants/Respondents

[2004] IESC 24

Denham J.

Murray J.

Geoghegan J.

349/01

350/01

THE SUPREME COURT

Synopsis:

- [2004] 1 IR 512 - [2004] 2 ILRM 537

The plaintiffs appealed against the order of the High Court granting the respondents leave to issue execution on foot of judgments for costs, which said judgments were in excess of six years old. The respondents gave evidence that they had refrained from issuing execution against both appellants pending the outcome of other proceedings. However, the respondents ultimately decided to issue execution proceedings because almost twelve years had elapsed since the date of the judgments and they were concerned that their right to renew the action might be extinguished by the s. 11(6) of the Statute of Limitations, 1957.

Held by the Supreme Court (Denham, Murray, Geoghegan JJ) in dismissing the appeal: That there were no grounds for interfering with the trial judge's exercise of discretion under O.42 r.24. It was not necessary for the respondents to provide some unusual, exceptional or very special reasons for obtaining permission to execute out of time provided that there was some explanation at least for the lapse of time. The trial judge was satisfied that sufficient reasons had been shown and the making of the order did not prejudice the appellants.

Reporter: L.O'S.

Citations:

RSC O.42 r24

RSC O.48 r23

COMMON LAW PROCEDURE (AMDT) ACT (IRL) 1853 S20

FITZGERALD V GOWRIE PARK UTILITIES SOCIETY LTD 1966 IR 662

STATUTE OF LIMITATIONS ACT 1957 S11(6)

CROFTER PROPERTIES V GENPORT UNREP MCCRACKEN 2.5.2000 2001/15/4192

WHITE BOOK 1936 782

NATIONAL BANK V CULLEN 1894 2 IR 683

EVANS V O'DONNELL 1886 LR IR 170 1885 19 ILTR 53

REAL PROPERTY LIMITATION ACT 1874

WALL V WALSH IR 4 CL 103

JOHNSON V BELL 6 IR CLR 526

LOWSLEY V FORBES 1999 1 AC 329

WT LAMBE & SONS V RIDER 1948 2 KB 331

NATIONAL WESTMINSTER BANK PLC V POWNEY 1991 CH 339

LOUGHER V DONOVAN 1948 2 AER 11

LIMITATION ACT 1939 (UK)

COMMON LAW PROCDURE (AMDT) ACT (IRL) 1853 S148

COMMON LAW PROCDURE (AMDT) ACT (IRL) 1853 S149

STATUTE OF WESTMINSTER II 1285 (UK)

HISOCKS V KEMP 3 AD & ELL 676

1 Justice Geoghegan delivered the 21st day of April 2004

2 This appeal arises from two applications made to the High Court under O. 42, r. 24 of the Rules of the Superior Courts for leave to issue execution on foot of judgments for costs which said judgments were more than six years old. In respect of a costs order made on the 24 ^th November, 1989 the first, second and fourth-named respondents applied and in respect of two subsequent costs orders made on the 26 ^th June, 1992 and the 1 ^st March, 1995 respectively the application was brought by the first and second-named respondents only. The High Court (McCracken J.) granted the order sought on the 23 ^rd November, 2001 and the plaintiffs/appellants have appealed on a number of grounds. It is appropriate at this point to cite in full O. 42, r. 23 of the Rules of the Superior Courts and the relevant part of r. 24.

3 2 " 23. As between the original parties to a judgment or order, execution may issue at any time within six years from the recovery of the judgment, or the date of the order.

4 24. In the following cases, viz.:-

5 (a) where six years have elapsed since the judgment or order, ...

6 a (b)...

7 b (c)...;

8 the party alleging himself to be entitled to execution may apply to the Court for leave to issue execution accordingly. The Court may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried:..."

9 This rule has a long ancestry going back to the Common Law Procedure Amendment Act, (Ireland) 1853 and I will return to it in due course. In his judgment the learned High Court judge commented inter aliaas follows.

" The respondents opposed this application on the basis that there is an onus on the applicants to show reasons for the delay. I accept this is so."

10 In the High Court that principle was not originally conceded by Mr. Noonan, counsel for the first and second-named defendants (respondents on the appeal). He argued that the order under r. 24 was not really a discretionary order at all but that the court had to decide whether to make the order or to direct first that an issue or question be determined as to the rights of the party which might be relevant to the order. That argument however cannot be correct having regard to the decision of this court in Fitzgerald v. Gowrie Park Utilities Society Limited [1966] I.R. 662 which made it perfectly clear as did some old Irish cases that the order is discretionary. Once the order is discretionary there must be something on which the judge can attach himself to in exercising the discretion. I think that it can be fairly said that that much was accepted by all sides at the hearing of this appeal. The real issue is whether there have to be some quite exceptional or special reasons or whether it is sufficient that in a general way the applicant was reasonable in making the application at the stage he did. When I come to deal with the law I will analyse this more fully. First it is necessary to look at the facts.

11 The application of the first and second-named respondents was grounded on the affidavit of their solicitor, Mr. Adrian O'Doherty. He referred to the relevant orders and that the sums remained unpaid despite unsuccessful attempts to levy execution against the first-named appellant. In the affidavit, Mr. Doherty explains why his clients up to that date had sought to issue execution against the first-named appellant only. He said it was primarily because the only asset of substance which to the knowledge of their clients was owned by the second-named appellant was his leasehold interest in Sachs Hotel, Dublin of which the second-named respondent was the landlord. There had been a long history of landlord and tenant proceedings culminating in proceedings seeking forfeiture on the grounds of non-payment of rent to the tune of £588,605.41 and interest and a counterclaim for damages for defamation which proceedings were not concluded. There is then a key paragraph in the affidavit, paragraph 5 which reads as follows: " 5. I say and believe that the first and second-named defendants had determined originally to await the outcome of those proceedings before attempting further execution on foot of the said judgments in the within proceedings on the assumption that those proceedings would have long since concluded. However because of the lengthy delays that have occurred in finalising the current proceedings, the first and second-named defendants are now extremely concerned having regard to the fact that twelve years will have elapsed from the date of the said judgment on the 24 ^th November, 2001." The alleged determination to await the outcome of the other proceedings must be read in the context of three different letters to similar effect written by the solicitors for the appellants, Messrs PCL Halpenny & Son and exhibited earlier in the affidavit. The learned High Court judge was obviously of the view and was clearly entitled to be of the view that the existence of those letters lent credibility to what is contained in paragraph 5 above. The letters were written in response to formal demands for the respective sums which were a prelude to proposed bankruptcy proceedings. The letters alleged abuse of the legal process and formally called upon the first-named respondent to desist from proceeding any further with threatened bankruptcy proceedings until a petition to wind up Genport Limited brought by the fourth-named respondent and an appeal from High Court proceedings were disposed of. As McCracken J. points out, the demand in each of the letters is much the same, that is to say, that the first-named respondent should hold back until all proceedings between the parties were disposed of.

12 Mr. Adrian O'Doherty also states in his affidavit that in the course of a recent hearing in the petition to wind-up the second-named plaintiff one of the grounds of objection was that no attempt had been made by the petitioner to send in the sheriff " to seize the furniture and effects in Sachs Hotel". Mr. O'Doherty points to the logic of that statement namely, that there must be goods and chattels in the hotel amenable to execution.

13 With regard to the similar application by the fourth-named respondent, that is grounded on an affidavit of Mr. Peter B. Brady, solicitor in the firm of John Murray solicitors, solicitors for the fourth-named defendant. That affidavit refers to the petition to wind-up the second-named plaintiff which was presented by the fourth-named respondent but was adjourned by the High Court judge also McCracken J. with liberty to re-enter. As no efforts were made by either of the appellants to pay the costs due to the fourth-named defendant, the petition was re-entered but was again adjourned by McCracken J. with liberty to re-enter as the learned High Court judge considered that the proceedings between the two companies should first be determined. In paragraph 7 of the affidavit however Mr. Brady states the following: " 7. The fourth-named defendant is conscious that her right to renew the action under O. 42, r. 24 may be extinguished pursuant to the provisions of the Statute of Limitations, 1957, section 11(6) as the original judgment on which it is based is dated the 24 ^th of November, 1989." I should mention in passing that this is an argument that was heavily relied on also by the first...